Merced Production Credit Ass'n v. Bayer

• Decision Date: 03 December 1963
• Citation: 222 Cal.App.2d 793,35 Cal.Rptr. 511
• Court: California Court of Appeals Court of Appeals
• Parties: MERCED PRODUCTION CREDIT ASSOCIATION, a cooperative corporation, Plaintiff, Cross-Defendant & Respondent, v. P. S. BAYER, Defendant, Cross-Complainant & Appellant. Civ. 284.

Page 511

35 Cal.Rptr. 511

222 Cal.App.2d 793

MERCED PRODUCTION CREDIT ASSOCIATION, a cooperative corporation, Plaintiff, Cross-Defendant & Respondent, v. P. S. BAYER, Defendant, Cross-Complainant & Appellant.

Civ. 284.

District Court of Appeal, Fifth District, California.

Dec. 3, 1963.

Hearing Denied Jan. 29, 1964.

Moody & Nelson, Turlock, for appellant.

Griswold & Barrett and Stephen P. Galvin, Merced, for respondent.

CONLEY, Presiding Justice.

Manuel J. Gomes, a Merced County farmer and dairyman, and his wife, Mary, borrowed money from the plaintiff, Merced Production Credit Association, for the purchase of hay, and executed a migratory chattel and crop mortgage on April 16, 1959, to secure the repayment of the loan. Included in the mortgaged property were 38 cows, described according to age, brand, and breed, 'together with all increases both by natural increase and by all purchases'; the farm machinery owned by the mortgagors and the crops grown on their specifically described real property in Merced County were also included. This mortgage was duly recorded in the office of the County Recorder of Merced County on April 21, 1959.

In the fullness of time and without notice to the mortgagee, all of the originally described cattle were sold by the Gomes family, and the controversy in this case turns on the question whether the lien of the mortgage attached to other cattle, namely, 27 cows, placed with Mr. and Mrs. Gomes on their Merced County ranch by the defendant, P. S. Bayer, and which according to the respondent, became 'increases' to their herd by purchase within the meaning of the mortgage. The trial court held that the instrument did cover all of these cattle, and it rendered judgment in favor of the plaintiff as against the Gomeses for the full amount of the indebtedness remaining unpaid and attorneys' fees, and against P. S. Bayer in the sum of Twelve Hundred Forty-Four and 39/100 ($1,244.39) Dollars, that being the unpaid balance on the Gomeses' note; the court further found that plaintiff was the owner of a certain fund representing the sale of six of these cows held by the Atwater Livestock Auction Yard, with the proviso that such monies, when delivered to plaintiff, should constitute a pro tanto payment of the larger sum specified; the money judgment against Bayer was based on a theory of conversion by Bayer of some twenty cows, which he had formerly placed with Gomes, but which he later took into his own possession contrary to the claimed rights of the mortgagee. Mr. Bayer appealed from the judgment; no appeal was filed by Mr. and Mrs. Gomes and the judgment is final as to them.

Appellant makes the following contentions for a reversal:

1) That the original mortgage itself was void because it did not conform with alleged statutory requirements, and that, therefore, though recorded, it gave no notice of its existence to Mr. Bayer;

2) That the judgment is erroneously 'saddling' Bayer with a personal debt he did not incur;

3) That title to the cows was at all times in Bayer, and that the mortgage, therefore, did not cover this livestock;

4) That the mortgage is not legally applicable to this after-acquired property because of alleged failure to comply with the provisions of Section 2977 of the Civil Code.

The claim that the mortgage was absolutely void, and that it, therefore, gave no notice of its existence to Mr. Bayer is based on the facts that the location of the cattle is not more particularly specified, that no street address of the mortgagor is given, and that the cattle are not sufficiently described. Respondent argues that this contention can not be considered because it was never made an issue in the pretrial conference order; a reading of the order seems to support respondent's objection, but in any event the contention of appellant is without merit.

Section 2956 of the Civil Code sets forth the following simple form of a mortgage of crops and chattels:

'THIS MORTGAGE, MADE THE ___ DAY OF _____, IN THE YEar _____, by a b, of _____, mortgagor, to C D, of _____, mortgagee, witnesseth:

'That the mortgagor mortgages to the mortgagee (here describe the property), as security for the payment to him of _____ dollars, on (or before) the ___ day of _____, in the year _____, (or, as security for the payment of a note or obligation, describing it, etc.) A B.'

It will be noted that the section does not require any more specific address of the mortgagor or mortgagee than the county of their residence or any specific statement of location within the county of the mortgaged property. In the present instrument, Mr. and Mrs. Gomes are described as residing or having their principal place of business within the County of Merced, State of California, and the Merced Production Credit Association's office is stated to be at Merced, California; in connection with the crop mortgage, the real property in Merced County owned by the mortgagors is described as follows:

'In Hilmar Colony Section 14, Township 6 South, Range 10 East, 15.36 acres of W 35 acres of Lot 75 S 1/2 of W 1/2 of Lot 76 and S 1/2 of E 5 acres of Lot 75.'

As is said in the leading case of Pacific Nat. Agr. Credit Corp. v. Wilbur, 2 Cal.2d 576, at page 589, 42 P.2d 314, at page 320, quoting from 11 Corpus Juris 457:

"As against third persons the description in the mortgage must point out the subject-matter so that such persons may identify the chattels covered, but it is not essential that the description be so specific that the property may be identified by it alone, if such description suggests inquiries or means of identification which, if pursued, will disclose the property covered. This rule is based upon the maxim, that is certain which is capable of being made certain. So a description is sufficient if it may be aided by parol proof and the property covered by the mortgage identified."

Genger v. Albers, 90 Cal.App.2d 52, 57, 202 P.2d 569, 572, holds:

'* * * no particular method of description is necessary, nor is it essential that the description be sufficient to identify the property without the aid of parol evidence.'

and the opinion in Security First Nat. Bank v. Haden, 211 Cal.App.2d, 459, 463-464, 27 Cal.Rptr. 282, 285, states:

'In United Bank & Trust Co. v. Powers, 89 Cal.App. 690, 699, 265 P. 403, 406, it is said: 'The rule is well settled that where a chattel mortgage of record contains a sufficient description, which, by putting parties upon inquiry, will enable them to identify and ascertain the property mortgaged, the mortgage will not be held void for uncertainty (Jones on Chattel Mortgages, § 64; 5 Cal.Jur., p. 54), where it is stated that a description of property is sufficient if it is such as to enable third parties, by inquiry, to...